ONLINE LECTURE 04 PVL1501

LEARNING UNIT 4

The interests of the unborn child (nasciturus)

 The interests of the unborn
• The nasciturus fiction
 A natural person’s legal personality begins at birth.
 The unborn is not a legal subject and does not
have rights, duties and capacities.
 Exception created by nasciturus fiction
An unborn (the nasciturus) is regarded as having
being born at the time of his/her conception
whenever it is to his/her advantage.
 Nasciturus fiction (cont)
• Two requirements must be met for nasciturus fiction
to come into operation:
 The nasciturus must have been conceived when the
benefit would have accrued to him/her.
 The nasciturus must be born alive.

NB: The application of the fiction must be to the

advantage of the nasciturus and not a third person,
such as the parent.
 Application of the nasciturus fiction
• Mainly used in succession.
 Distinguish between testate and intestate
succession.
Testate succession when the deceased leaves
behind a will.
Intestate succession when the deceased does not
leave behind a will.
 Maintenance after birth
• Shields v Shields 1946 CPD 242
• [Make your own summary of this case as it is
discussed in Heaton.]
• A mother cannot waive her unborn child’s right to
claim maintenance. Such an agreement would be
contra bonos mores.
Dependant’s action for loss of support
• Chisholm v East Rand Proprietary Mines Ltd TH 297
• NB: This was the first case in SA law where the
nasciturus fiction was used in the field of delict.
• [Study this case as it is discussed in Heaton.]
 Prenatal injury
Pinchin v Santam Insurance Co Ltd 1963 (2) SA 254
(W)
This decision was overturned in:
Road Accident Fund v Mtati 2005 (6) SA 215 (SCA)
This is one of your prescribed cases and you must
summarise this case according to the guidelines in
the Study Guide.
 Guardianship and care
• These are two components of parental responsibilities and
rights.
• You must know what was held in Friedman v Glicksman
1996 (1) SA 1134 (W)
• A mother may not enter into a contract on behalf of her
unborn child as legal personality only begins at birth and
an agent may not enter into a contact on behalf of a non-
existent principal.
• You only need to know it as far as it is discussed in Heaton.
 Termination of Pregnancy
• Choice on Termination of Pregnancy Act 92 of 1996
• Divided into three trimesters.
• 0-12 weeks of the gestation period
• 13 -20 weeks of gestation period
• After the 20th week.
[Make your own summary of the requirements to have
a pregnancy terminated during the 3 trimesters.]
Consent for termination of pregnancy
• Informed consent of the pregnant woman.
• Minor must be advised to consult medical
practitioner, midwife, nurse, but termination of
pregnancy may not be denied.
• Surrogate mother must consult with commissioning
parents although the decision is hers.
• NB Christian Lawyers Association of South Africa v The
Minister of Health (Reproductive Health Alliance as
Amicus Curiae) 2005 (1) SA (T)
 Sterilisation
• Sterilisation Act 44 of 1998
• Voluntary sterilization of anyone older than 18 years
and who is capable of consenting.
• Minor may be sterilized if failure to do so would
jeopordise his/her life or seriously impair his/her life
• Person who is incapable of giving consent or
incompetent to consent. Study the requirements on p
25 in Heaton. Also study the factors that should be
taken into account by the panel on pp 25-26 in Heaton.
 Does the protection of the interests of the nasciturus
imply that that an unborn is sometimes a legal subject?

• Distinction between the nasciturus fiction and the nasciturus rule.

• Nasciturus rule: A nasciturus is a legal subject from the date of
conception whenever his/her interests are at stake.
• Nasciturus fiction: A nasciturus is
regarded as having been born at
the time of his/her conception if a
situation arises where it would have
been to his/her advantage if he/she
had already been born.
Ask if you have questions!